McGeehan, Jayne and Wm. J. Brennan, Jr. The opinion of the court was delivered by William J. Brennan, Jr., J.A.D.
[17 NJSuper Page 435] This appeal brings up for review a judgment entered in the Chancery Division awarding the plaintiff husband a divorce based on adultery and dismissing the defendant wife's counterclaim based on extreme cruelty.
A child, her first, was born to defendant on September 18, 1949, 16 years after the marriage of the parties. She had a "normal" delivery after a "full time" pregnancy. Her attending physician, asked to give his opinion of the date of the child's conception, testified as her witness that, "calculated on the basis of a general rule for expecting the time of delivery," the calculation was December 11, 1948, but "that is a general rule, not a specific one for a specific patient." A physician who was a witness for the husband agreed that the calculation according to the general rule produced that date.
The husband's case is that the child is not his, but is the child of a paramour of the defendant, not identified. He claims that he is infecund and, in any event, had no marital intercourse after August, 1948, when, he said, he and his wife quarreled and thereafter occupied different rooms in their apartment until November 21, 1948, when he left her. He also testified that "sometime in December" he intercepted a man leaving the apartment and upon demanding an explanation from his wife was told she wanted a divorce to marry the other.
There is no corroboration whatever either of the alleged non-access from August to November 21, or of the alleged December incident. The alleged non-access after November 21 is corroborated, however, by the testimony of plaintiff's mother and brother that after that date he slept every night at his mother's house.
The wife categorically denies any wrongdoing. She testified that after a reconciliation in August following a separation of several months, the marriage was harmonious until she discovered her pregnancy in March, 1949, and the plaintiff claimed that the child was not his; that, notwithstanding this, they did not separate until after the baby's birth. She admitted that after November 21 her husband usually spent the night at his mother's home, but said he did so because defendant worked nights at the time and plaintiff's mother was lonesome after the death of plaintiff's
father and wanted company. She said, however, that plaintiff came to the apartment every afternoon after finishing work and stayed until he drove her to her place of work and that he usually spent her nights off with her in the apartment. She insisted that they continued marital intercourse until June, 1949, when she became very ill and plaintiff took her to her sister's house, from which she was hospitalized and to which she returned in the first week of July and where she remained until she went back to the hospital for her confinement. Her brother corroborated her to the extent of testifying that on occasions he stayed overnight in the apartment and that once in December, 1949, the parties occupied the bedroom while he slept in the living room.
When it is sought in any case to support a finding of adultery upon circumstantial evidence, the circumstances must be such as would lead the guarded discretion of a reasonable and just man to that conclusion. Where appearances are capable of two interpretations, equally consistent with probability, the one involving guilt and the other consistent with innocence, the interpretation should be favorable to innocence. Eberhard v. Eberhard , 4 N.J. 535 (1950); Bingenheimer v. Bingenheimer , 2 N.J. 284 (1949); Wagner v. Wagner , 140 N.J. Eq. 213 (E. & A. 1947); Berckmans v. Berckmans , 16 N.J. Eq. 122 (Ch. 1863), affirmed 17 N.J. Eq. 453 (E. & A. 1864); Day v. Day , 4 N.J. Eq. 444 (Ch. 1844). And where the consequence is not only to convict a wife of being an adulteress, but is also to make illegitimate a child born in wedlock, the proof must be such that "there is no possible escape" from the conclusion that the charge made by the husband is true. Wallace v. Wallace , 73 N.J. Eq. 403 (E. & A. 1907); Titus v. Titus , 3 N.J. Misc. 241 (Ch. 1925). An innocent child is not to be branded with the bar sinister unless the record is so far conclusive as to leave room for no other course. 7 Am. Jur., pp. 636 et seq.
We are not persuaded that the proofs either as to alleged infecundity or alleged non-access justify the conclusion that "there is no possible escape" from the finding
that they substantiate the charge of adultery leveled by the plaintiff against his wife. The most favorable view that may be taken of the claim of non-access is that there was no access after November 21, 1948; the plaintiff's uncorroborated statement of non-access from August, 1948, to November 21, 1948, is insufficient to overcome the presumption that marital intercourse is practiced between competent spouses living in the same house. Desmidt v. Desmidt , 130 N.J. Eq. 23 (E. & A. 1941). Thus the issue in this regard is narrowed to the question whether the interval of 301 days from November 21, 1948, to September 18, 1949, so far exceeded the normal period of gestation as to make it impossible for plaintiff to be the child's father. That fact as to an interval of such length must be established by competent medical proof and will not be presumed. Such proof is lacking here. It is not to be found in the testimony of the physicians' calculations of the December 11 date -- the rule employed by them is a rough approximation merely and was disclaimed as being precise or determinative in a particular case. There are decisions which have held that the adultery of a wife is not proved by evidence of her giving birth to a child after even longer periods since access of her husband. Gaskill v. Gaskill,  P. 425, 21 A.L.R. 1451 (331 days), and cases discussed in Preston-Jones v. Preston-Jones , 1 All E.R. 124 (H.L. 1950). See also Annotations , 7 A.L.R. 329, 21 A.L.R. 1457.
The proofs relied upon by the trial court to support its finding that the plaintiff was infecund and could not possibly have procreated the child are similarly inconclusive. The tests were made September 2, 1949 (two weeks before the birth of the child), July 12, 1950 and August 5, 1950). The evidence is that such negative results are medically explicable either because there is no formation of fecundating fluid or, if formed, that the fluid is blocked in its passage. However, plaintiff's doctor testified that "no ...